Senior advocate Dushyant Dave also pulled up lawyers, saying it fell to them to stir the conscience of the judiciary if it was not acting.

New Delhi: There has been a “virtual silence” on the part of the judiciary and it has left citizens “to fend for themselves”, senior advocate and president of the Supreme Court Bar Association Dushyant Dave said Saturday.

Dave was speaking at an online seminar titled ‘Role of judiciary in pandemic’, organised by the All India Lawyers’ Union.

He was particularly critical of the top court’s response to the migrant crisis, noting that in one of the hearings, it asked: “How can we stop them from walking?”

“If the judges had seen their grandchild walking on the road, and suddenly see a car rushing from the other side, would the judges have not tried to save the child? Every citizen of India is a grandchild of the Supreme Court of India,” he said.

“Judges have a pious Constitutional duty to protect every citizen. They can’t sit in ivory towers, blind folded and (not) see day after day the miseries of the citizens of India,” he added.

Dave also acknowledged the separation of powers among different organs of the government, but said, “All that judges had to do was to have told the executive that ‘we are here, we are watching you. Your actions and inactions are hurting the nation, hurting millions of people … We will not allow this’.”

The pandemic, he said, had given the judiciary a great opportunity to win over the hearts of the people, but the courts had missed out on it.

‘Judges failing in their duty’

Dave highlighted that the Constitutional framers envisioned the judiciary to supervise “executive actions and inactions”.

He asserted that judges had been “singularly failing in their duty” to hold the government accountable during the past eight weeks.

Referring to the Constituent Assembly debates, he pointed out that Dr B.R. Ambedkar had called Article 32 — which allows citizens to approach the Supreme Court against violation of their fundamental rights — as the most important Constitutional provision.

But now, judges were not willing to follow the Constitution, he said.

Dave went on to say that it was the bar’s duty to remind the judiciary of its role. “If the judiciary’s conscience is dead, it is the duty of the lawyers to stir up that conscience. When the judiciary is not acting, we cannot simply watch and do nothing. Unless the bar unites and puts pressure on the judges to act, we will not be able to galvanise the judiciary into action,” he said.

Judiciary must adjudicate

“When the Supreme Court was given an opportunity to step in because the migrants were not being taken care of and immediate steps were required, they turned away.”

Speaking to ThePrint, he added, “They (Supreme Court) declined to entertain those petitions and instead got distracted by two things. One, saying that we need to trust our governments at a time like this, and two, questioning the locus of the petitioners. Both were completely misdirected in this case.

“Trusting the government is not the job of courts. Second, the migrant issue was writ large in every single press and media, so there was no doubt that there was a problem. If there was a problem that needed to be addressed, to shoot the messenger was not the correct way to go about it,” he added, referring to the court’s orders to the media to publish the “official version” of events. The government had claimed that fake news had led to the mass reverse migration of workers during the lockdown.

He also pointed out that more than a dozen high courts of the country had entertained petitions on labourersand questioned their governments.

Senior advocate K.T.S. Tulsi, however, said that while this is a viewpoint that is gaining traction, he believes that “even in earlier cases where the judiciary intervened, many of the problems were of administrative nature, which can’t be resolved by the judiciary”.

“I do believe that the judiciary’s prime responsibility is adjudication, which is becoming longer, and therefore, more painful. The judiciary should really focus on adjudication and not stray into the executive or legislative field,” he added, highlighting the separation of powers between the legislative, executive and the judiciary.

60 COMMENTS

Dave is voicing the General Concern of all helpless migrants who need comprehensive evacuation policy measures for them to enable the safe returns to their native places amid compounding and exacerbating threats to their survival due to covid19 induced lockdown. The response of the judiciary that read “We can’t stop them (migrants) from walking is very ludicrous and unexpected of the common citizens which portray wrong picture in this trying times. I believe HCs are more empathetic to the current crisis of the exodus of migrants as many HCs have issued situation-oriented orders to both center and respective state govts to redress the grievances of poor Indians.

Dave is voicing the General Concern of all helpless migrants who need comprehensive evacuation policy measures for them to enable the safe returns to their native places amid compounding and exacerbating threats to their survival due to covid19 induced lockdown. The response of the judiciary that read “We can’t stop them (migrants) from walking is very ludicrous and unexpected of the common citizens which portray wrong picture in this trying times. I believe HCs are more empathetic to the current crisis of the exodus of migrants as many HCs have issued situation-oriented orders to both center and respective state govts to redress the grievances of poor Indians.

Reality:
What we see in the country is that during lock-down parliament is not in sessions unlike hundreds of other countries. Now it is in this context only source of checks and balance in the country is court of law bet it to address issues of basic rights of migrants or life and livelihood issues of all citizens including people of Kashmir who are having a lock-down with in a lock-down since August of last year.

We see on many of the important judgements passed by SC of India that natural justice, common sense is missing to put it in simple terms. In fact, one can make a big list of SC rulings where this is the case for last few years and has been pointed out constitutional experts, retired supreme court judges and high court judges that judiciary has left citizens to fend for themselves.

Lawyers Responsibility:
Now only hope to save soul of India is on all socially & morally conscientious lawyers of India to point out to the judges of courts of laws their duties and responsibilities when litigant in the most of the cases is Government of India.

Indians gratefully remember all lawyers and barristers of India like MK Gandhi, Sardar Patel, Nehru and other fought for freedom of India. We know you wouldn’t let us down to restore “rule of law” according Indian constitution and not allow “rule by law” otherwise India will look like China in another few years.

A hard comments, despite it is the prevailing trend that the people in higher places of money and power used the judiciary as a place of asylem,to dragon the Government proceedings and also proceedings before the subordinate courts. The thing that no court in any should not use the discretionary powers beyond the four corners of law,pleadings, materials

A hard comments, despite it is the prevailing trend that the people in higher places of money and power used the judiciary as a place of asylem,to dragon the Government proceedings and also proceedings before the subordinate courts. The thing that no court in any should not use the discretionary powers beyond the four corners of law,pleadings, materials

I am surprised that the population in india ballooned from meagre 35 Cr to 130 Cr from independence till date.now if we compare this to Australia – 2.5cr,Us – 30 Cr and many other countries you will understand that the unimaginable population india has compared to resources it has is has is bound to create problems with social justice and social equality. Who should be blamed for this? Govts or people. Population control is the need of the hour.Stringent laws are needed to arrest this menace before this becomes a tumour.it was a trend till date in villages to have 7-8 children.who would feed them ? How will they get social justice?

The point here is not population but SC acting in consonance with executive. Arnab’s case is heart in 12 hours whereas others who have been charged for freedom of expression are laungishing in prisons without their bail petition being heard. The last independant institution had become slave of govt and people have lost faith in judiciary. Must admit Pakisthan SC has got juice at right place when the CJ gave a strong ruling agaist Gen Mushaif despite fully knowing that he will be arrested

Mr Santhosh forgets that each migrant labourer has one mouth and two hands.Whichever stimulation package would not make factories run without the labour. He also forgets that this unimaginable worker population only made the industries run until the lockdown.
“If you cannot cry together,you are not a nation”-Ernst Renan,French philosopher.
“This is one problem of our nation for which I cannot provide a way out.But I know for sure that without empathy to other citizens,India will remain as a nation in the making”-B.R.Ambedkar’s speech in the constituent assembly.

In 1993 a south african photographer got a pulitzer award for photo captioned vulture and a poor girl. The photo grapher was asked how many vultures were there, while answered one he was told two one with camera resulting in kevin carter the photographer committing suicide at the age of 33 for not saving the girl and taking pics

I was shocked when a former High court Judge defended Mr. Nirav Modi in UK court recently. It is known fact Nirav Modi siphoned thousands of crores from Banks in India and now in UK avoiding legal action in India. Former Judge’s action gives the impression to law abiding Indian citizens that Indian judiciary is not above board. How could the Aam aadmi then get fair deal from Indian judiciary!!!

I do agree with Mr. Dave’s concern. How can the highest Court of the land shut its eyes while dealing with such a volcanic issue of the executive’s failure? The Supreme Court is also subject to criticism when it appears to fail in discharging its Constitutional obligation.

An advocate is a court officer.Court has nothing to do with morality.Mr.Dave trying to be famous by criticising SCI that it shut it’s eyes.Are people on railtrack not trespasser or criminal as per Indian Railways Act.Does he know abc of such act?These advocates supported/demanded hanging of 4poor accused of Delhi Dec12 case involving Kavindra Pratap Pandey and his night friend both from Ballia U.P.girl and boys being of higher castes.
Advocates and pressmen and people’s representatives not respected by public but feared ones.Mr.Dave shame on you for further tarnishing image of legal fraternity.

Fact is that SC is no longer independant and un biased. They are slaves of Govt and their rulinhs have been in favour of govt without justofication. The former CJI was awareded plum Rajya Sabha seat. Lets accept the fact that judichiary is sold out

Mr. Dave has found the voice for the citizens of our country. I hope he also ponders over how the Bar can contribute to reducing the backlog in cases that run into crores. That should be a collective priority of the judiciary and bar associations. Otherwise stepping into others’ region of responsibility, howsoever well intentioned, will look only farcical.

This is their normal practice.When SC decide in their favour,they will praise them. If SC goes agaist them they will criticise them ,play victim card or play emotional appeal. This people are from lutian circle..

“The light of Indian constitutionalism is itself dimming. The latest exhibit is the Supreme Court’s order in the petitions asking for restoration of 4G access in Kashmir. By referring the matter back to a committee led by the home ministry, the court has violated all principles of natural justice. It has created a new evil. It implies that the home ministry can be plaintiff, judge, executioner, jury in its own cause.”

Criticising supreme court is a fashion in India, bcoz of panic of death migrant workers r leaving,not bcoz of food&shelter,had there been a war they r not dare to move out from house,state govt is responsible if workers r not getting food not the supreme court&I think henceforth people of India will consider 2child norm policy so to reduce the joblessness &empowering every state instead of some few states

About the issue of backlog of cases and delay, is it not possible to have two or even three shifts in the courts ‘premises. The railways, airlines and many other organisations function 24 hours? More judges & lawyers!

Actually, the judges usually don’t stop working once the court hearings get over. There are quite a few things that they need to take care of, before and after the hearings. For instance, they are required to be acquainted with the files of the cases that they are going to hear through the day, and they also have to pen judgments. However, this is a demand that has been put forth even by judges in the past, albeit without any success.

This is actually a perpetual debate on what constitutes judicial overreach. Courts are duty-bound to review the actions of the executive and the legislature. However, at the same time, it also needs to be careful and refrain from stepping into the executive domain. This is what the courts usually consider while deciding to interfere in citizens’ grievances.

Constitution is not only theory but it should be into practice and make it reach the last man of this country. No
doubt our present and past Govt.s are trying to make it possible. But unfortunately in our country it is handled by capitalists. Outside forces are controlling. For example our CGIT case filed a case for absorption of temporary employees. In the year 1991 and final judgement given in favour of temporary employees of LIC, in the year 2015 March. But it took 2 years to implement and that to a partially executed.only few hundreds were. Given job and remaining thousand of equally placed temporary employees are still waiting. The historical judgement was given by the then Supreme court Judge Sri Gopal Gowda.

Judicial acts are always criticised on either side. Dushyant Dave’s observations appear to be tainted with some kind of bias or motivated by penchant for popularity. In my opinion, it is too early to pass any comment on the stand of the Honourable Supreme Court.

I totally agree with Justice Dave.
I hope the conscience of every Indian wakes up in plight of migrant workers, and support their own domestic workers with adequate wages even if very limited service is rendered from them due to this pendamic lockdown.
I condemned those hypocrites who call themselves desh bhakt, yet treat those who oppose the Gov’t discriminatory CAA law, as anti-national or provoke them as Pakistanis…shame on you lot, when you look yourselves in the mirror have courage and ask yourselves what good you have done to this nation as Patriots.!

Supreme court was absolutely right with respect to migrants it cannot enter into the day to day functions of the government and it is not only the centre that us to be blamed it is the state government and even the state government tried it’s best but it is not easy to satisfy all the people. The courts the cases are pending for several years why Mr Dave or any one who says the supreme court is silent did not take any steps to see that no cases in court take years for getting judgement and how rich are able to get their cases listed, get bail .It is easy to blame the supreme court or government but first let the advocates see that there is a time frame within which case is to be completed.

Well said.There are very little persons in 130 crore who dare to speak like Daveji.People are well aware of judiciary.Hearings are arranged for rich and influentials.
Inn many cases ,hearings donot take place for years and for few,hearings take place in hours.
Retd Justice Gupta has well commented.

Bar association president is using his possition for his own political interests. I totally disagree with his commends. Judiciary is is not failing in its duty. Rather Judiciary is acting as a responsible institution. At this crucial time of unprecedented difficulty, it is necessary to give space and support for the administration to take policy decisions with no interference unless it is utmost necessary. Just because Court has not granted favorable orders in cases where one appears, can’t blame the judiciary.

Well said, other wise. SaheenBag and Mumbai bag, a situation like a mini Pakistan, inside the heartland of Hindustan wouldn’t have the privilege of eating Byriani for almost 50 days at the inconvenience of majority Hindustani s

Well said, other wise SaheenBag and Mumbai Bag , situation like a mini Pakistan inside hreat land of Hindustan, wouldn’t have the privilege of eating Byriani at the costs of Hindustani’ inconvenience for almost fifty days. Jai hind

DAVE is absolutely right. This is the time when Judiciary has to perform but unfortunately they just come out of battle without perform constitutional job.If Judiciary failure then who ll listen laymen of this poor country. We all know how burocrates and politician are haven’t nexus and to break that nexus citizens of thos country depends only on Judiciary. But bed luck for our brothers and sisters.

Needs to be discussed by the public in social media as to how could they expect justice in the present scenario when the executive enjoys the help of judiciary unquestionably and the need of a change of executive.

Judiciary is the watchdog of the Constitution.If it remains silent to the executive inactions.A time will come when it loses its credibility and people will start thinking that it is worthwhile to should settle their issues outside the court.
Judiciary should deal with migrants crisis very sternly.

Its truly the fact remains that the inaction of judiciary to set the government into needful steps to protect the fundamental rights its citizens which is their primary duty, had seems mute. The opinion expressed by senior supreme court advocates is in consonance with Constitution obligation…

In 1993 a south african photographer got a pulitzer award for photo captioned vulture and a poor girl. The photo grapher was asked how many vultures were there, while answered one he was told two one with camera resulting in kevin carter the photographer committing suicide at the age of 33 for not saving the girl and taking pics

DD is typical of the gang of senior counsel whose thrive only by trying to brow beat the bench.

One professional blackmailer, part of father son duo, also a former AAP member use this baseless threats (without providing any evidence), under garb of public interest litigation.

They had infamously even threatened Supreme Court judges with a secret envelope which contained the names of the “most corrupt of the judges”!!

Needless to say, the shameful senior counsel, a former law minister no less, never ventured to make public the names — using such ploys only to blackmail the judges to get decisions in the favour of the father son duo.

At the risk of inviting contempt, I venture to say that the lower judiciary is plagued by reservations for the so called deprived, irrespective of any merit what so ever, these are the so called learned magistrates, and overstepping all other meritorious guys reach the highest level of District Judges, creating immense heartburn in their colleagues. The elevation to higher judiciary is from these reservationists, mostly on political grounds of Chief Minister’s. Thereafter the movement from pusine judges to Chief Justices is on the basis of date of birth and not merit, no one can question the Hon’bles as they are Constitutional Authorities. It is from these worthies that we get the elevation to the highest court. The topmost advocates never opt for the bench and are happy having intellectually lesser beings on the bench, it serves their purpose. All higher judicial appointments must be ratified by the Parliament as is the case with US

Appointment in judiciary if based upon Manusmriti then all such problems will be solved.But since there is nothing Bhartiya in Indian Constitution and almost all foreign judgements many a time become foreign.First there be a Bhartiya Constitution written by Sanskrit knower scholars and not British educated and sponsored lawyers.

There is a social contract between the Government and the people and the people willingly vest a lot of power in the Government – that is the essence of a republic and the SC is supposed to be the guardian of that contract. More than the Constitution, the judges probably need to study political theory.

Wow. Looks like the Supreme court advocate discovered something that none of India’s citizens knew about, that the judiciary is dysfunctional. Everyone and his uncle knows that judicial remedy is always the last resort. One can get a quicker outcome by approaching the neighborhood tough rather then approaching the courts. The judiciary exists at all levels only to hinder the path of justice. The only ones who approach the judiciary are those who wish to delay justice or interfering busybodies filing useless PILs. Of course the government is the judiciary’s biggest client with all it’s cases being weapons to harass citizens, an endeavour in which the judiciary is a willing partner.

Well said, other wise SaheenBag and Mumbai Bag , situation like a mini Pakistan inside hreat land of Hindustan, wouldn’t have the privilege of eating Byriani at the costs of Hindustani’ inconvenience for almost fifty days. Jai hind